UPDATE: JULY 1, 2020 – A judge has ruled that Stephen Elliott can move forward with his defamation suit against Moira Donegan, the creator of a Google spreadsheet known as the “Shitty Media Men” list.
Under defamation statutes, there are different standards for what you can say about a public figure–say, a celebrity, politician, or other person with a high profile–compared to what is acceptable to say about an unknown private citizen.
While Donegan’s legal team argued that, as an established writer and producer who spoke regularly to media and went on book tours, Elliott must meet the definition of a public figure. In his own filing about his listing in the document, Elliott had argued that even his sexual tastes were “common knowledge.” Nonetheless, a federal judge in New York disagreed.
“Defendant directed the Court to only a few tangential references to sexual harassment or lewd jokes in the workplace in Plaintiff’s writing and interviews,” Judge Hall’s opinion reads. “And the Court is not willing to find that Plaintiff’s more extensive writings and interviews about sex, BDSM, and sexual assault—unrelated to workplace issues—transforms him into a public figure with respect to the controversy here.”
By casting him as a private figure in the context of the case, his team no longer has to prove that Donegan acted out of “malice” toward him.
That means the next chapter in the legal wrangling will pertain to Donegan’s responsibility over an open, online spreadsheet which she allowed anonymous users to update. Specifically at issue, The Hollywood Reporter says, will be Section 230 of the Communications Decency Act. That section is what big tech companies have relied upon on to say they are neutral platforms, not liable for content that users publish using their tools.
Judge Hall noted that, by creating the spreadsheet but not necessarily creating all the entries on it, Donegan “qualifies as a provider of an interactive computer service.”
However, that might only shield her in the context of Elliott’s suit if she can prove that his specific entry was created by an anonymous third party, something which might expose the identities of other people who have nothing to do with Elliott. If Google complies with the subpeona as it is currently structured, it would out every person who contributed to the sheet. So far, Google has refused to comply.
JANUARY 15, 2019 – According to Moira Donegan, the spreadsheet that became known as the “Shitty Media Men List” was supposed to be a place where women could warn one another about their male colleagues’ bad behavior and protect themselves from potential predators. But what started as a so-called “whisper network” quickly went viral, and Donegan became the target of legal action. Last fall, writer Stephen Elliott, whose name appeared on the list, filed a defamation lawsuit against Donegan.
Elliott’s complaint says that he’s a “submissive male in the BDSM context” and this predilection is well known in the media community. Thus, he argues, the list’s claim that there were “rape allegations” against him must be false, and whoever posted them must have known them to be false at the time. Donegan’s camp sees things differently.
In a letter submitted to the office of U.S. District Court Judge LaShann DeArcy Hall on January 11, Donegan’s counsel, Roberta A. Kaplan, seems to turn Elliott’s submissiveness argument back on him. His complaint claims that whoever posted his entry on the list must have known about his sexual proclivity because it’s something that is “commonly known” about him in the context of his work. The letter takes the position that, if that’s the case, then Elliott falls into the category of a legitimate public figure, subjecting him to a higher burden of proof in a defamation case than that faced by a private individual.
“As a writer and producer who promotes his work at ‘publicity events,’ ‘interviews,’ and ‘panels’–and whose writing and sexual preferences are supposedly ‘commonly known’–Mr. Elliott qualities as a public figure,” Kaplan’s letter says. “The First Amendment therefore requires him to allege plausibly that Ms. Donegan published any defamatory statements with ‘actual malice’–that is, with knowledge that the statements were false or with reckless disregard to their falsity.”
And then there’s the matter of Eliott’s sexual preferences. Kaplan argues that the claim that he could be too sexually submissive to commit harassment or assault is suspect.
“Mr. Elliott’s principal allegation is that, because he is a well-known BDSM submissive, he ‘could not physically participate’ in the alleged misconduct,” the letter says. “As a factual matter, this ‘too submissive to rape’ defense is obviously absurd.”
Full text of the letter was posted online by Eriq Gardner, who wrote about it for The Hollywood Reporter. Gardner’s previous reporting on the list is also referenced in the letter’s text, in a portion arguing that moving forward with the plaintiff’s claims would trigger complex, multi-jurisdictional litigation.
Elliott is a filmmaker, the former editor in chief of The Rumpus, and the author of eight books, including the memoir After Adderall (the basis of the 2015 James Franco film The Adderall Diaries) and My Girlfriend Comes to the City and Beats Me Up, a collection of short stories centered around BDSM themes. The anonymous post about him that appeared on the Shitty Media Men list read, “Rape accusations, sexual harassment, coercion, unsolicited invitations to his apartment, a dude who snuck into Binders???” and “Multiple women allege misconduct.”
Women have made other public allegations against Elliott, outside the context of the Google doc. As the New York Times reported, novelist Claire Vaye Watkins wrote about him being a “tone-deaf misogynist,” and two female staffers from The Rumpus, Lyn Lenz and Marisa Siegel, shared stories of times they felt he acted inappropriately. When asked by the Times about those incidents, Elliott responded that, “I’ve certainly been unaware of boundaries and transgressed them without realizing.” However, he has repeatedly asserted that the claims made against him on the Shitty Media Men list are entirely false.
Created by Donegan in late 2017, the Google spreadsheet in question could be secretly updated and edited by anyone with the URL, which was soon shared more widely than its inventor expected. “Fundamentally, a whisper network consists of private conversations, and the document that I created was meant to be private as well,” Donegan wrote in an essay for The Cut. “It was active for only a few hours, during which it spread much further and much faster than I ever anticipated, and in the end, the once-private document was made public.”
In October 2018, Elliott filed his initial lawsuit, alleging libel and emotional distress, and seeking at least $1.5 million in damages. In addition to suing Donegan, Elliott’s complaint also includes other, unnamed defendants (officially referred to as “Jane Does (1-30)”) who participated in editing the doc. His counsel intends to use the discovery process of the lawsuit to get their identities, even stating that they intend to subpoena Google itself–something which the company stated it would fight.
“We do not believe that Stephen Elliott should be able to issue subpoenas and otherwise burden Moira and the Jane Doe defendants until the Court decides that his complaint states a valid cause of action,” Kaplan stated in an email when reached for comment about the letter. “In other words, a plaintiff cannot use an improperly-pleaded complaint as a basis to use the civil discovery system to obtain information he would not otherwise be entitled to.”
If his case proceeds, some fear that it could have a chilling effect on reporting of sexual harassment and misconduct. In his interview with the New York Times, Elliott himself says, “This might be like a 500-person RICO case,” if the men named on the list were to expose and legally pursue each of the women that participated in the doc.
“The women who entered info on the Shitty Media Men List, including our client Moira, did so for one reason and one reason only,” Kaplan says. “To help and protect other women and make sure that no further harassment or abuse occurred.”
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